HomeMy WebLinkAboutS1-City Attorney
, CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
,
. From:
James F. Penman, City Attorney
Subject:
An Ordinance of the City of
San Bernardino Amending Section
8.72 Relating to Smoking.
Dept:
City Attorney
September 22, 1994
Date:
Synopsis of Previous Council action:
Ordinance 3653 - 1966
Ordinance MC-623 - April 18, 1988
Ordinance MC-905 - June 6, 1994
ADlIlJI.. CFF!Cill
28 SEP 91', 8: 08
Recommended motion:
Waive further reading and layover for final adoption.
~,
./ Signature
Deuu16 A. Bo.llvw
5Z55
Contact person:
Phone:
Supporting data attached:
Ward:
FUNDING REQUIREMENTS:
Amcunt:
Source: (Acct. No.)
(Acct. DescriPtion)
Finance:
Council Notes:
75-0262
Agenda Item No.
5 I
CITY OF SAN BERNARDINO - REQUEST F9R COUNCIL ACTION
I."'!
" ~..
STAFF REPORT
At the meeting of the Mayor and Common Council on Monday,
September 19, 1994, the Council directed that the original smoking
ordinance be brought back to replace the more stringent MC-905.
This proposed ordinance is how Chapter 8.72 read before it was
superseded by MC-905, with the exception that the original 90 days
allowed for a business to adopt a smoking pOlicy in S8.72.060 has
been reduced to 10 days because the business have been used to this
ordinance for several years and they will still have additional 30
days before the ordinance is effective.
75-0264
I,
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
o
o
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF SAN BERNARDINO AMENDING CHAPTER
8.72 RELATING TO SMOKING.
'THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO
DO ORDAIN AS FOLLOWS:
SECTION 1.
Code is hereby amended to read as follows:
Chapter 8.72 of the San Bernardino Municipal
8.72.010
8.72.020
8.72.030
8.72.040
8.72.050
8.72.060
8.72.070
8.72.080
8.72.090
8.72.100
8.72.110
8.72.120
8.72.010
Legislative findings.
Definitions.
Prohibition against Smoking in city owned
facilities.
Prohibition against smoking in public places.
Smoking in restaurants.
Regulation of smoking in places of employment.
Where smoking is not regulated.
Posting of smoking and no smoking areas.
Violations.
Enfcrcement
Non-Retaliation.
Other applicable laws.
Legislative findings.
The Mayor and Common Council find and declare that:
A. Numerous studies have found that tobacco smoke is a major
contributor to indoor air pollution;
B. Reliable studies have shown that breathing sidestream or
secondhand smoke is a significant health hazard, especially
for certain population groups, including elderly people,
individuals with cardiovascular disease, and individuals
wi th impaired respiratory function, including asthmatics and
those with obstructive airway disease;
C. Heal th hazards induced by breathing sidestream or secondhand
smoke include lung cancer, respiratory infection, decreased
exercise
tolerance,
decreased
respiratory
function,
bronchioconstriction, and bronchi spasm;
DAB:js [Smoking5.0rd]
1
September 22. 1994
o
o
1 D. Nonsmokers with allergies, respiratory disease and those who
2 suffer other ill effects of breathing sidestream or
3 secondhand smoke may experience a loss of job productivity;
4 E. The Surgeon General of the United States has advised
5 nonsmokers to avoid exposure to tobacco smoke wherever
6 possible, and;
7 F. The smoking of tobacco, or any other weed or plant, is a
8 proven danger to health.
9 According, the health, safety and general welfare of the
10 residents of, persons employed in, and persons who frequent
11 this City will be benefitted by the regulation of smoking in
12 designated enclosed places.
13 8.72.020 Definitions.
14 The following words and phrases, whenever used in this
15 chapter, shall be construed as defined in this section:
16 A. "Bar" me"ans _ an area which is devoted to the serving of
17 alcoholic beverages and in which the service of food is only
18 incidental to the consumption to such beverages. The area
19 devoted to such use shall be as set forth in any conditional
20 use permi~, variance or other Planning Department or
21 Building and Safety Department document establishing such
22 use or, as determined for purposes of collection of business
23 taxes by the office of the City Clerk.
24 B. "Business" means any sole proprietorship, partnership, joint
25 venture, cOJ:poration or other business entity formed for
26 profitmaking purposes as well as professional corporations
27 and other entities which provide legal, medical, dental,
28 engineering, architectural, or other professional services
DAB:js [SmokingS.Ord] 2 September 22. 1994
o
o
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
and which "business. employers ten (10) or more persons.
Working owners and management employees shall be included in
the calculation of the ten or more persons.
C. "Dining area" means any enclosed area containing a counter
or tables upon which meals are served.
D. "Employees" means any person who is employed by any employer
in consideration for direct or indirect monetary ages or
profit, and any person who volunteer his or her services for
a non-profit entity.
E. Employers" means any business and any non-profit entity with
ten or more employees. Working owners and management
employees shall be included in the calculation of the ten or
more persons.
F. "Enclosed" means closed in by roof and four walls with
appropriate openings for ingress and egress except the
public areas of any shopping mall shall not be deemed to be
"enclosed" for purposes of the application of this chapter.
G. "Non-profi t entity" means any corporation, unincorporated
association,_ or other entity created for charitable,
educational, political, social, or similar purposes, the net
proceeds from the operation of which are committed to the
promotion of the objects or purposes of the organization and
not to private financial gain. A public agency is not a
"non-profit entity" within the meaning of the section.
H. "Place of employment:" means 1) any enclosed area, 2) under
the control of a public or private employer, 3) which
employees occupy with normal frequency during the course of
employment, including but not limited to, work areas,
DAB: js [SmokingS.Ord] 3 September 22. 1994
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
o
o
employee lounges, and restrooms, conference and class rooms,
cafeterias, and hallways, except that a private residence is
,
not a place of employment, unless it is used as a child care
or health care facility.
I. "Public place: means any enclosed area to which the public
is permitted, including, but not limited to: banks, private
educational facilities, health facilities, public
transportation facilities, reception areas, restaurants,
retail food production and marketing establishments, retail
service establishments, retail stores, theaters, and office
waiting rooms.
J. "Restaurant" means any coffee shop, cafeteria, tavern,
. sandwich stand, soda fountain, private or public school
cafeteria, and any other eating establishment, organization,
Club, board house, or guest house, which gives or offers
food for sale to the public, guests, patron, or employees,
except that the term "restaurant" shall not include a
cocktail lounge or tavern if said cocktail lounge or tavern
is a "bar" as defined herein.
K. "Retail tobacco store" means a retail store utilized
primarily for the sale of tobacco products and accessories.
L. "Service-line" means an indoor queue in which one or more
persons routinely wait for or receive service of any kind,
whether or not such service inCludes the exchange of money.
M. "Smoking" means the igniting, inhaling, exhaling, or
carrying of any burning cigar, or cigarette of any kind, or
the igniting, inhaling, exhaling or carrying of a pipe or
other device for smoking, containing any burning substance.
DAB: j8 [SmokingS.Ord] 4 September 22. 1994
o
o
1 N. "Enclosed athletic recreation area" means gymnasiums, health
2 spas, swimming pOOls, roller and ice rinks.
3 o. "Waiting room space" common area of any office, restaurant,
4 theater or any other facility where persons routinely wait.
5 8.72.030 Prohibition against smoking in city owned facilities.
6 All enclosed facilities owned by the City of San Bernardino
7 shall be subject to the provisions of this section.
8 A. Places of public assembly. Smoking is prohibited in all
9 hearing rooms or places of public assembly in which the
10 business of the City of San Bernardino, or any of its Boards
11 or Commissions, is regularly conducted.
12 B. Public lobbies, public hallways. Smoking is prohibited in
13 all waiting rooms, lobbies, and public hallways of every
14 building under direct or indirect control of the city;
15 provided, however, that this prohibition does not prevent
16 the establishment of separate areas of such building in
17 which areas smoking may be permitted.
18 C. Smoking is prohibited in all areas of the City Hall, except
19 those areas designated by the City Administrator or Mayor
20 and Common Council.
21 D. Notwithstanding any other provision herein, the City
22 Administrator or the Mayor and Common Council may exempt any
23 place of. puJ;llic assembly, public lobby or public hallway
24 from the prohibition of smoking or designa~e areas within
25 said place of public assembly, public building or public
26 hallway as a "smoking area."
27 8.72.040 Prohibition against smoking in public places.
28 A. Smoking shall be prohibited except as otherwise specifically
DAB:Js [SmokingS.Ord] 5 September 22. 1994
o
o
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
set forth herein in all enclosed public places, including,
but not limited to, the following:
1. Elevators and restrooms.
2. Buses, taxicabs and other means, of public transit
operated under the authority or franchise of the City
of San Bernardino, and ticket boarding, and waiting
areas of public transit depots; provided, however; that
this prohibition does not prevent the establishment of
separate waiting areas for cigarette smokers.
3. Service lines.
4. Retail stores, except areas in said stoT.es not open to
the public and except all areas within retail tobacco
stores.
5. Retail food marketing establishments, including grocery
stores and supermarkets except those areas of such
establishment set aside as restrooms and offices, and
areas thereof not open to the public, which r..ay be
otherwise regulated by this chapter. Those areas of
such establishments set aside for the purpose of
serving food and drink shall be subject to the same
provisions as set forth herein for the regulation of
smoking in restaurants.
6. All areas available to and customarily used by the
public in all businesses and non-profit entities
patronized by the public, including, but not limited
to, such areas in business offices, banks, hotels and
motels.
7. Public areas of aquariums, libraries, and museums when
DAB:js [Smoking5.0rdl
6
September 22. 1994
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24 B.
25
26
27
28
o
o
open to the public: provided, however, that this
prohibition does not prevent the establishment of
separate smoking areas in a building in which cigarette
smoking is otherwise prohibited.
8. Any building not open to the sky which is used
prin,arily for exhibiting and motion picture, stage
drama, lecture, musical recital or other similar
performance, except when smoking is a part of any such
production, provided, however, that this prohibition
does not prevent the establishment of separate areas in
the waiting room of such building, in which waiting
room cigarette smoking may be permitted.
9. Enclosed athletic recreation' area, except in designated
smoking areas.
10. Waiting rooms of doctors' offices and dentists'
offices, hallways, wards, and semi-private rooms of
health facilities, including, but not limited to,
hospitals, clinics, and physical therapy facilities.
In bed space areas of health facilities used for two or
more patients, smoking shall be prohibited unless all
patients within the room request to be placed in a room
where smoking is permitted.
11. Polling places.
Notwi thstanding any other provision of this section, any
owner, operator, manager or other person who controls any
establishment described in this section may declare the
entire establishment or any portion thereof to be a non-
smoking area.
7
DAB:js (Smoking5.0rd]
September 22. 1994
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
~
23
24
~
26
27
28
o
o
8.72.050 Smokin~in restaurants.
A. Smoking is prohibited and is unlawful within all enclosed
restaurants whose occupancy capacity is thirty (30) or more
persons, provided, however, that this prohibition shall not
apply to any such establishment maintaining a smoking
pOlicy, notice of which is published on the exterior or
within the waiting area of such establishment and plainly
visible to prospective patrons of such establishment. Such
policy shall set forth the fact that a nonsmoking section is
available and whether such seating is contiguous or non-
contiguous to other nonsmoking seating.
B. Any portion of a restaurant used as a bar is excluded from
the prohibition of this section.
8.72.060 Regulation of smoking in places of employment.
A. Within 10 days of the effective date of this chapter, each
employer shall adopt, implement, make known and maintain a
smoking pOlicy stating where smoking is permitted and where
it is prohibited.
B. The smoking policy shall be communicated to all existing
employees and shall be provided to new employees at the time
of their initial interview.
C. Every employer shall have the right to designate and place
of employmen~ or portion thereof, as a non-smoking area.
8.72.070 Where smoking is not regulated.
Notwithstanding any other provisions of this chapter to the
contrary, the following specific and limited areas shall not be
subject to the smoking restrictions of this chapter.
1. Bars.
DAB:js ISmokingS.Ord]
8
September 22. 1994
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
o
o
2. Hotel and motel rooms rented to guests.
3. Retail xobacco stores.
.
4. Restaurants, hotel and motel conference or meeting
rooms and public and private assembly rooms while these
places are being used for any private functions.
8.72.080 Posting of smoking and no smoking areas.
A. The international "No Smoking" symbOl (consisting of a
pictorial representation of a burning cigarette enclosed in
a red circle with a red bar across it on a sign of minimum
of six inches ( 6") in width and eight inches ( 8") in
height) , ci ting this subsection shall be clearly, and
conspicuously posted in every building or other place where
smoking is controlled by this chap~er by the owner,
operator, manager or other person having control of such
building or other place.
B. Every theater owner, manager or operator shall conspicuously
post signs in the waiting area stating that smoking is
prohibited except within designated smoking areas.
8.72.090 Violations.
A. It is unlawful for any person to smoke in a place where
smoking is prohibited.
B. It is unlawful for any person who owns, manages, or
otherwise controls the use of any premises subject to the
prohibi tion of this chapter to fail to post signs as
required by this chapter or to knowingly permit a violation
of this ordinance.
C. Any person or business which violates subsection 'A' or
permi ts such violations, or any other provision of this
DAB:js [Smoking5.0rd] 9 September 22. 1994
o
o
1 chapter, except as otherwise provided herein shall be guilty
2 of an infraction, punishable as set forth in San Bernardino
3 Municipal Code Chapter 1.12(B).
4 8.72.110 Non-Retaliation.
5 It is hereby.declared to be a violation of public policy for
6 a person or employer to discharge, refuse to hire, or in any
7 manner retaliate against any employee or applicant for employment
8 because such employee or applicant exercises any rights afforded
9 by this chapter.
10 8.72.120 Other applicable laws.
11 This chapter shall not be interpreted or construed to permit
12 smoking where it is otherwise restricted by other applicable law
13 or regulation.
14 III
15 I I I
16 I I I
17 I I I
18 I I I
19 I I I
20 III
21 I I I
22 III
23
24
25
26
27
28
I I I
I I I
I I I
I I I
I I I
I I I
DAB:j. [SmokingS.Ord] 10
September 22, 1994
j
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
o
o
ORDINANCE...AMENDING CHAPTER 8.72 RELATING TO SMOKING.
I HEREBY CERTIFY that the foregoing Ordinance was duly
adopted by the Mayor and Common Council of the City of San
Bernardino at a
meeting thereof,.held on the
, 1994, by the following vote, to wit:
day of
Council Members:
NEGRETE
CURLIN
HERNANDEZ
OBERHELMAN
DEVLIN
POPE-LUDLAM
MILLER
AYES
NAYS
ABSTAIN
ABSENT
City Clerk
of
The foregoing Ordinance is hereby approved this day
, 1994.
Approved as to form
and legal content:
JAMES F. PENMAN,
City Attorney
~J
DAB:js [Smoking5.0rd]
Tom Minor, Mayor
City of San Bernardino
11
September 22. 1994